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FOIA-related Open Government Information

Description of the Department’s staffing, organizational structure, and process for analyzing and responding to FOIA requests

Staffing

DOT has a DOT-level FOIA office located in OST and FOIA offices in each of its components. In FY 2011, 92.65 staff-years were spent in administering its FOIA programs. The 92.65 staff-years include 37 full-time FOIA employees and 55.65 staff-years of effort by people who worked part-time in performing FOIA-related functions. (The 55.65 staff-years include FOIA staff and attorneys who worked part-time on FOIA, program office staff who searched for and reviewed responsive records, and the time spent on FOIA by FOIA Public Liaisons, supervisors, and managers.)

Organizational Structure

The Department has a departmental-level FOIA office located in the Office of the Secretary (OST) and FOIA offices in each of its components:

Federal Aviation Administration (FAA)

Federal Highway Administration (FHWA)

Federal Motor Carrier Safety Administration (FMCSA)

Federal Railroad Administration (FRA)

Federal Transit Administration (FTA)

Office of the Inspector General (OIG)

Office of the Secretary (OST)

Maritime Administration (MARAD)

National Highway Traffic Safety Administration (NHTSA)

Pipeline and Hazardous Materials Safety Administration (PHMSA)

Research and Innovative Technology Administration (RITA)

St. Lawrence Seaway Development Corporation (SLSDC)

Breakdown of FOIA organizational structure by component:

Many components, including FMCSA, FRA, FTA, MARAD, NHTSA, OIG, OST, PHMSA, and SLSDC have centralized programs, where all FOIA responsibilities and activities are conducted by a central FOIA office. These centralized FOIA offices obtain records from their various program offices, review the documents, and make determinations regarding release of the documents.

FAA and FHWA operate their FOIA programs in a decentralized fashion, in which FOIA responsibilities and activities are shared among numerous field and headquarters program offices. Each of the decentralized offices receives FOIA requests, searches for records, reviews records, and makes releasability determinations. In these decentralized programs, there is an office at headquarters that oversees the implementation of the FOIA program and coordinates its component’s portion of the annual report.

RITA’s FOIA responsibilities and activities are primarily shared between a headquarters FOIA office and a field office (Volpe National Transportation Systems Center), with a second field office performing a small number of FOIA activities. The headquarters FOIA office coordinates RITA’s portion of the annual report.

Additional FOIA Roles in the Department:

Departmental FOIA Office: The Departmental FOIA Office provides direction, leadership, guidance, and assistance to the FOIA offices throughout DOT. This office hosts a monthly DOT-wide meeting for FOIA offices throughout DOT. This office coordinates the overall FOIA annual statistical report for the Department, as well as the Chief FOIA Officer report. The Departmental FOIA Officer also serves as the FOIA Officer for the OST FOIA office.

Chief FOIA Officer: The Department’s Chief FOIA Officer provides high level oversight and support to DOT’s FOIA programs, and recommends adjustments to agency practices, personnel, and funding as may be necessary to improve FOIA administration, including through an annual Chief FOIA Officer Report submitted to the U.S. Department of Justice.

FOIA Public Liaisons: DOT has FOIA Public Liaisons throughout the Department, who serve as officials to whom FOIA requesters can raise concerns about the service they have received from the FOIA Offices. FOIA Public Liaisons report to the Chief FOIA Officer on their FOIA-related activities.

FOIA Process for Analyzing and Responding to FOIA Requests

The process for all components except FAA and FHWA:

The FOIA Office that receives the request asks the appropriate program office(s) to search for responsive records.

Pertinent employees in the program office(s) search for responsive records and, to the extent records are located, provide them to the FOIA Office to undergo a review.

If an employee who provides responsive records believes that any of the records, or portions thereof, may be subject to an exemption from release, the employee indicates that to the FOIA Office when providing the records.

The FOIA Office reviews the responsive records in coordination with program office subject matter expert(s), and takes into consideration the subject matter expert(s)’ input regarding whether particular information may be exempt from release.

The FOIA Office makes the ultimate determination regarding release.

When full disclosure of a record is not possible, the FOIA Office makes a partial disclosure of any reasonably segregable non-exempt portions.

When the FOIA Office determines that portions of a record are technically exempt from release, but the exemption is a discretionary exemption, e.g., Exemption 5 (deliberative process privilege), the FOIA Office makes a further determination of whether the exempt portions nevertheless can be released as a matter of discretion. This requires that the FOIA Office make a “foreseeable harm” determination.

In determining whether harm is reasonably foreseeable to result from releasing information subject to a discretionary exemption, the FOIA Office considers such factors as the age of the record, the sensitivity of the content, the nature of the decision at issue, the status of the decision, and the personnel involved.

The FOIA Office does not withhold information merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.

The process for FAA and FHWA:

The FAA’s and FHWA’s FOIA programs are decentralized. FOIA requests are accepted by FOIA coordinators and assigned to offices that hold responsive records throughout the country. Those offices are responsible for searching for responsive records and for making disclosure determinations, as well as for responding to the requester.

The FOIA guidance is available to all FAA employees through regional FOIA coordinators and through the National FOIA program office. The FOIA guidance is available to all FHWA employees through the headquarters FOIA program office. In both the FAA and FHWA, legal advice is available at the regional and headquarters level.

Like the other DOT FOIA offices, the decentralized FOIA offices throughout FAA and FHWA make partial disclosures of any reasonably segregable non-exempt portions when full release is not possible. The decentralized offices also make discretionary disclosures, as appropriate, when no “foreseeable harm” is found.

An assessment of DOT’s capacity to analyze, coordinate, and respond to FOIA requests in a timely manner together with proposed changes, technological resources, or reforms that DOT determines are needed to strengthen FOIA processes

DOT Components

FAA: Federal Aviation Administration

FHWA: Federal Highway Administration

FMCSA: Federal Motor Carrier Safety Administration

FRA: Federal Railroad Administration

FTA: Federal Transit Administration

MARAD: Maritime Administration

NHTSA: National Highway Traffic Safety Administration

OIG: Office of the Inspector General

OST: Office of the Secretary

PHMSA: Pipeline and Hazardous Materials Safety Administration

RITA: Research and Innovative Technology Administration

SLSDC: St. Lawrence Seaway Development Corporation

An assessment of DOT’s capacity to analyze, coordinate, and respond to FOIA requests in a timely manner

In early 2010, the Departmental FOIA Officer conducted comprehensive reviews of each component’s FOIA program, under the direction of the Chief FOIA Officer. Smaller scale reviews were conducted in December 2010. When the reviews were completed, the Chief FOIA Officer met with one or more senior level officials in each component to discuss the findings and any component-specific recommendations, and to encourage their support of the FOIA program. During FY 2011, the Departmental FOIA Officer reviewed progress made by the components in response to recommendations made in the previous reviews, and reviewed backlog reduction and timeliness trends for each DOT component. Appropriate recommendations are being made by the Chief FOIA Officer to the heads of the components during their annual one-on-one meetings with the Chief FOIA Officer.

Actions previously taken to strengthen DOT’s FOIA programs

In November 2009, the Chief FOIA Officer issued a memorandum entitled “FOIA and Creating a New Era of Open Government” to the Heads of Operating Administrations. The memorandum addressed the key roles played by all agency personnel in identifying information to affirmatively disclose to the public on the Internet, streamlining FOIA responses, and promoting the presumption of disclosure.

In December 2009, the Departmental FOIA Office, assisted by FAA’s Senior FOIA Specialist, made a presentation on FOIA to Administration officials and FOIA personnel within the Department. The presentation included an overview of the Department’s responsibilities under FOIA, its FOIA programs, FOIA exemptions, and other matters covered in the Chief FOIA Officer’s November 2009 memorandum.

The Departmental FOIA Office holds interactive monthly meetings with FOIA specialists and attorneys throughout the Department to provide guidance, address current FOIA issues, and share best practices. The monthly DOT-wide FOIA meetings are useful in identifying barriers to components’ effective and efficient implementation of their respective FOIA programs. Issues can be identified and addressed as they occur, and components can share experiences, ask one another questions, brainstorm, and come up with FOIA solutions.

Over the past few years, DOT’s components have taken other steps as well:

FAA and OST each added a full-time permanent FOIA professional in response to previous recommendations, and FHWA back-filled two FOIA professional positions. (However, the FAA and FHWA each have a recently vacant FOIA professional position, which we recommend be filled as soon as possible.)

FRA assessed its program and added targeted resources. OIG’s FOIA office increased its FOIA staffing. PHMSA created a shared FOIA file on the network server allowing PHMSA’s regional offices to upload responsive records, which saves the regional staff time and resources that would be needed for duplication and postal or courier fees.

The FAA headquarters FOIA team conducted supplemental FOIA training sessions for the FAA’s Headquarters FOIA coordinators in the program offices. The purpose of this ongoing series of training sessions is to reiterate the openness policy and provide advice and best practices on processing FOIA requests in a more timely manner.

FOIA Backlogs

From FY 2008 to FY 2009, we reduced our backlog of initial requests by 12 percent. During that same time, our backlog of appeals increased by 8 percent. At the end of FY 2009, the Department had a backlog of 1,284 initial requests and 96 appeals. We considered these backlogs significant and took steps to reduce them.

From FY 2009 to FY 2011, we reduced our backlog of initial requests by an additional 43 percent and our backlog of appeals decreased by 32 percent. At the end of FY 2011, the Department had reduced its backlog of initial requests to 724 and it backlog of appeals to 65. Although we have made progress, we still intend to decrease the backlogs further.

FOIA Module -- The Environmental Protection Agency, the Office of Government Information Services within the National Archives and Records Administration, and the Department of Commerce are jointly developing a FOIA Module that will expand transparency and increase public access to information for the partner agencies. The Module will support the public’s ability to submit FOIA requests, track the progress of requests, and search and access previously released FOIA responses in the system. For agencies, the Module will streamline and lower the costs of FOIA processing activities as well as provide an electronic records repository (compliant with the DOD 5015.2 standard); automatically generate the annual FOIA report; support the referral and transfer of FOIA requests and responsive documents; and facilitate other processing needs. The Module is scheduled to be deployed in late FY 2012.

Technology Initiative Action: DOT recognizes the potential value and benefits of participating in a system such as the FOIA Module. Therefore, DOT will closely watch the deployment of this end-to-end system as soon as it is launched. Between that time and December 31, 2013, we will watch the system’s performance and analyze and assess the FOIA Module for possible use by DOT. We will make a decision whether the FOIA Module meets our needs by December 31, 2013, for possible deployment in FY 2014.

Other Actions:

FAA and FHWA each have one vacant FOIA professional position. These vacancies should be backfilled as soon as possible.

FAA and FHWA should re-delegate the FOIA Officer title and responsibilities in their components to a subject matter expert who is a full-time FOIA professional. We believe this streamlining will allow those components to process requests more efficiently, which will help improve timeliness and reduce backlogs.

The Departmental FOIA Office will conduct a process review of MARAD’s FOIA program to ensure the program is running as effectively and efficiently as possible.

After FHWA’s FOIA program completes its transition to the Chief Counsel’s office, the Departmental FOIA Office will conduct a process review of FHWA’s FOIA program to identify efficiencies and ensure its decentralized program is operating effectively.

When the retiring Chief FOIA Officer’s replacement is named, the new Chief FOIA Officer should send a memorandum to the heads of components reiterating the importance of FOIA and everyone’s role in FOIA.

Several DOT components are using electronic redaction software. The Departmental FOIA office will explore electronic redaction options available to, and facilitate their use by, the remaining components.

The Departmental FOIA Office will work with the Office of the Chief Information Officer to explore e-discovery tools, which could also be used for FOIA searching and de-duplicating.

Milestones that detail how DOT will reduce its pending backlog of outstanding FOIA requests by at least ten percent each year

The DOT’s goal is to reduce our backlog of both initial requests and appeals by 10 percent each year for the next several years, as illustrated in the charts that follow. We believe we can accomplish this goal based on the previously-described “Actions Previously Taken” and by implementing the previously-described “Proposed changes, technological resources, or reforms that DOT determines are needed.”

The Departmental FOIA Officer will check components’ progress in implementing proposed recommendations at DOT’s monthly FOIA meetings. By December 30, 2012, the Departmental FOIA Officer will make a final evaluation of progress in meeting backlog reduction goals and make further recommendations to the Chief FOIA Officer, as appropriate.